Hastings Capital Australia Pty Ltd v Booth

[2022] NSWSC 892

Supreme Court

New South Wales

Medium Neutral Citation:

Hastings Capital Australia Pty Ltd v Booth [2022] NSWSC 892

Hearing dates:

16 June 2022

Date of orders:

16 June 2022

Decision date:

16 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The notice of motion is dismissed.

(2) Alan Munro, who brings the notice of motion, is to pay the plaintiff’s costs of and incidental to the notice of motion.

Catchwords:

LAND LAW – writ of possession – application for stay – where notion of motion brought by person no longer party to proceedings

Category:

Procedural rulings

Parties:

Hastings Capital Australia Pty Ltd (Plaintiff)
Peter John Booth (First Defendant)
Leanne Booth (Second Defendant)
Alan Munro (Third Defendant [proceedings discontinued])

Representation:

Counsel:
P Silver (Plaintiff)
A Munro (Third Defendant [proceedings discontinued])

Solicitors:
Summer Lawyers (Plaintiff)
Self-represented (Third Defendant [proceedings discontinued])

File Number(s):

2021/296725

EX TEMPORE Judgment (REVISED)

1. There is, before the Court sitting in the duty list, a notice of motion filed by Alan Munro seeking orders in the following terms:

1. “Motion to stay proceeding of writ of possession”, and

2. “Judgment debtor is third defendant to sell land”.

2. Those orders in their terms are somewhat opaque, but what is really sought is that there be a stay of the execution of a writ of possession which concerns property owned by the first and second defendants in proceedings brought by Hastings Capital Australia Pty Ltd. That proceeding was commenced by statement of claim in October 2021 and resulted in default judgment against the first and second defendants and an order for possession of land. That is set out in a notice of motion filed in April 2022. The parties agree that, as things stand, there is a writ of possession due to be executed on 29 June 2022 in relation to land subject to a mortgage in favour of Hastings Capital Pty Ltd and otherwise owned by the first and second defendants, Peter John Booth and Leanne Booth.

3. The notice of motion before me, as I have said, was brought by Mr Munro and was filed on 10 May 2022. Whilst he may have been in the past, he is no longer a party to the proceedings as between the plaintiff and the first and second defendants. He is not a person with an interest in the land subject to the writ.

4. A preliminary point is raised by the plaintiff, the point being that Mr Munro lacks standing because he is not a party to the proceedings and has no interest in the land subject to the writ of possession. That submission is set out with admirable clarity in the submissions dated 10 June 2022 and I accept that submission.

5. The material filed describes the background to these proceedings. There were many guarantors to the loans but, ultimately, these particular proceedings are concerned with that part of the financial arrangements involving Peter and Leanne Booth and the fact that their real estate was subject to a mortgage pursuant to those financial arrangements. There is a great deal of evidence indicating that Mr Munro feels, perhaps, that he is responsible for the financial predicament in which the Booths currently find themselves and that he has, perhaps in good faith, attempted to reach some compromise with the plaintiff whereby payments would be made to them which would satisfy them that the money that they have lent is going to be paid back.

6. Based on the evidence, I am unable to come to any concluded view as to the efficacy of those offers or the arrangements said to be put in place or attempted to be put in place as recently as 12 June 2022, which is to say four days ago, as evidenced in the affidavits filed. I am told that the plaintiff is prepared to enter into meaningful discussions with the defendants and presumably also with Mr Munro, but that at this point the pieces of land said to be available to secure the promises to repay $300,000 of the current debt of $382,270.27, in a very short term, are subject to other court orders for forced sale.

7. All of that would go to the merits or otherwise of any application for a stay brought by those with an actual interest in the land in question in these proceedings, that is to say Peter John Booth and/or Leanne Booth. But, it is unnecessary to enter the fine detail of that because the primary position taken by Hastings Capital Australia Pty Ltd is sound. Mr Munro does not have standing to bring this application.

8. The notice of motion is dismissed and Mr Munro, who brings the notice of motion, is to pay the costs of the plaintiff of and incidental to the notice of motion.

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Decision last updated: 04 August 2022